Election probe likely to swing on interpretation

A state election investigator is trying to determine whether a Swain County voting drive targeting the poor and elderly crossed the line from exceptionally ambitious to improper.

The investigator was in Swain County this week to probe accounts of irregularities that occurred during last fall’s election. Two prominent Democrats — County Commissioner Chairman Glenn Jones and Willard Smith, a long-time leader in the local Democratic Party — led the voting drive. Smith’s nephew, Philip Smith, also aided with the voting drive at a trailer park he owns.

The men systematically targeted trailer parks, low-income senior housing and nursing homes. They helped more than 120 residents vote through the mail — by requesting the ballots, filling them out and mailing them back in. A disproportionately large number of voters using mail-in ballots favored Democratic candidates when compared with the Election Day results.

The outcome of the investigation will largely hinge on how the N.C. Board of Elections interprets state election law. Under a strict interpretation, the voting drive appears to have violated at least three and as many as five separate laws, ranging from misdemeanors to felonies.

However, state election staff is leaning toward a more lenient interpretation of the law. Instead of a literal interpretation, they are focusing on whether the spirit of the law was violated. Being too heavy-handed can have negative repercussions on voting, according to Marshall Tutor, the election investigator assigned to the case.

“The bottom line at the end of the day is we want people to be able to vote,” said Tutor. “We try to enfranchise people. We don’t want to make it hard for people to vote.”

Tutor said most of the scenarios that allegedly occurred in Swain County qualify as “grey areas.”

“Until we get a new law we will have to continue to operate in this grey area,” Tutor said.

One such grey area is whether it’s legal to mail someone else’s ballot for them. The men leading the voting drive helped voters mark their ballots, and then took the ballots with them to be mailed. State law says it is illegal for anyone other than a near relative to be in possession of another person’s ballot for the purpose of returning it to the county board of election. But state law also says that someone can request assistance “voting their ballot.”

Is mailing someone’s ballot for them an extension of “voting their ballot” and therefore legitimate assistance?

Tutor says “yes.” If someone asks you to mail their ballot for them, you can, Tutor said. Tutor said that is merely the staff interpretation, however.

“We would be at the mercy of a court ruling. A judge could rule otherwise at any point in time. But at this point in time, if you can help someone by mailing a ballot for them, it’s fine,” Tutor said.

State election staff could be over-ruled in their interpretation by the five-member state election board.

“The state board of elections has not dealt with that issue. (Tutor) is saying that as his opinion,” said Larry Leake, the chairman of the state election board. Leake, a Democrat, is an attorney in Asheville.

Allowing someone else to mail your ballot can create the potential for abuse. For example, a conservative group could target a traditionally Democratic neighborhood in a voting drive, promising to mail the ballots on behalf of the voters, but then simply toss the ballots. Voters in a trailer park and a senior apartment complex said the men handling their ballots either helped them mark their ballots, reviewed their ballots after they had marked them or otherwise saw how they voted. Although there is no evidence of this, ballots that weren’t favorable could have been lost.

“That’s the issue,” said Charles Winfree, another state election board member. “At what point can these people exercise that level of control over the ballots? We always have a tension between making it easy to vote and maintaining the integrity of elections.”

Winfree, a Republican and attorney in Greensboro, said that’s where the five-member state board should come in.

“One of our jobs is to try to interpret and reconcile provisions of the state law in a way they doesn’t disenfranchise, but it doesn’t violate the letter of the law,” Winfree said. “When we hear evidence on this matter that will be something we have to resolve.”

Leake agreed that the state election board could be asked to decide issues of clarity in the law.

Nursing home rights

The state election staff has an internal disagreement over another aspect of the Swain County election investigation — that involving nursing home patients. State election law says it is illegal for anyone other than a near relative to help a nursing home patient request a ballot or mark a ballot. Last election, Smith, accompanied by Jones, helped at least five nursing home patients request mail-in ballots and then fill them out. Some state election staff is saying this might be OK, even though Smith was not a near relative (see related article below).

Winfree said he was not aware that the state election staff was considering a broad interpretation of the nursing home law.

“The law doesn’t make an exception for people who don’t have near-relatives nearby,” said Winfree,

A legal request

Another area where state election staff is favoring broad interpretation of state law: what constitutes a legitimate request for mail-in ballots? State election law says that a request for a mail-in ballot must be “handwritten entirely by the requester” or be an official form from the county election board.

In Swain County, Smith and Jones went door-to-door armed with ballot requests they had prepared in advance. They simply had the voter sign their name, date and fill in their address. The men then mailed the requests for the voters.

Although the voters didn’t handwrite their own requests, Tutor said it was OK as long as the voter had signed them.

Rep. Martin Nesbitt, D-Asheville, has introduced a bill in the General Assembly twice in the past that would lift the restriction on ballot requests having to be handwritten entirely by the voter. Nesbitt is a proponent of election laws that he says, “improve access to the ballot box.” Nesbitt said political parties and candidates should be allowed to mass produce ballot request forms and provide them to voters, who simply have to sign them and mail them in to the county election office to get their ballot.

“Whenever parties or candidates make honest efforts to target their favorable voters and encourage them to exercise their right to vote, they are acting for the common good and in fact are fulfilling their highest calling,” Nesbitt wrote in his bill.

It did not pass, however.

Who decides?

John Herrin, a Republican who sits on the Swain County election board, said he is concerned by the broad interpretations the state election staff seems to be leaning toward. Herrin said state election staff should not attempt to rationalize or legitimize the alleged activities.

“I hasten to think that if such activities as they have been described did in fact happen and are to be now somehow legitimized without due process,” Herrin said. “Interpretation or deviation from the law of the land is a matter left to the courts and subsequently the General Assembly if there is something that needs changed.”

Herrin said such an interpretation would be a “Pandora’s box,” and similar activities could be expected elsewhere.

“I fear the integrity of our electoral voting system is at stake not only here in Swain County but across North Carolina,” Herrin said.

The ultimate decision on how to interpret what occurred in Swain County will rest with the five-member state election board, not the state election staff. Whether the election board will be asked to weigh in is unclear, however. If the staff finds there was no wrongdoing in Swain County, it could simply issue that opinion without ever taking it to the board. In that case, any member of the public could appeal the determination to the state election board, and it would then take up the case.

“It comes before us when the executive director places it before us or when someone appeals a decision to us,” said Leake, speaking in general and not about this case specifically.

The state board has three Democrats and two Republicans.

When it all started

The Swain County election investigation was prompted by a complaint from two trailer park residents who claimed they were forced to vote a straight Democratic ticket under the threat of eviction. The scope of the investigation has since broadened.

“We are continuing to work that particular complaint. In addition, that complaint has led down other avenues,” said Tutor, the election investigator assigned to the case. “We will go where ever it carries us.”

Reporting by The Smoky Mountain News uncovered several of the additional irregularities now being investigated. The Smoky Mountain News reviewed mail-in ballot envelopes and requests for mail-in ballots, then tracked down more than 20 of the voters targeted in the voting drive.

One irregularity uncovered by the paper will likely have little wiggle room in the interpretation if investigators are able to verify it. Mail-in ballots are supposed to have signatures from two witnesses. Candidates are not allowed to sign as a witness — that meant Jones could not sign as a witness although he was present on the rounds. In several cases, the second witness was not at the home of the vote when they marked their ballot, according to the recollections of voters and to one of the alleged witnesses himself.

Some observers have grown impatient with the pace of the investigation. A state election investigator visited Swain County once in February. Three months passed until he returned this week. Election investigators have apparently had their hands full in Raleigh, where state politicians have been charged with various counts of bribery and improper campaign finance reporting.

Tutor said he hadn’t forgotten about Swain, however. Tutor said a return trip to Swain was delayed by logistical challenges, namely scheduling interviews with those involved in the investigation and the legal counsel they have retained.

“Although we have not been there, we have been working the phones. We have a tremendous amount of information we are trying to get through,” Tutor said.

Tutor said the investigation wouldn’t be wrapped up for quite a while yet.